Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1995] NISSCSC C4-95(IS) (27 April 1995)

 


Decision No: C4/95(IS)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 INCOME SUPPORT Application by the claimant for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of the Magherafelt Social Security Appeal Tribunal dated 14 March 1994 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer that claimant was no longer entitled to a disability premium in addition to his income support.
2. I arranged an oral hearing at which claimant was represented by Mr G... and the Adjudication Officer was represented by Mrs McRory.
3. Briefly the facts are that the claimant who is a 39 year old joiner claimed and was awarded income support from May 1992; at that time he was unemployed and available for work. He became incapable of work in June 1992 and as he was not entitled to sickness benefit received income support and from 23 December 1992 he received disability premium.
4. He was examined by Medical Officers of the Department who expressed the opinion he was capable of work and as a result the Adjudication Officer advised him that he could no longer be regarded as incapable of work and withdrew his disability premium from March 1993.
5. Claimant appealed against that decision to a Social Security Appeal Tribunal and in the submission to the Tribunal the Adjudication Officer's submission relating to the grounds upon which the Adjudication Officer reviewed the decision reads:-

"I submit that as the Adjudication Officer has now determined that

Mr B... is not incapable of work then one of the requirements

for entitlement to Income Support is no longer satisfied.

Accordingly the decision awarding benefit falls to be reviewed

under Regulation 17(7) of the Claims and Payments Regulations."

6. The Social Security Appeal Tribunal to which claimant appealed disallowed his claim and gave reasons for its decision as:-

"The claimant has not proved on the balance of probabilities that he

is incapable of all work from 27.2.93. Having regard to all the

evidence and in particular the comments of Mr H… the Tribunal

find that the claimant is incapable of his usual occupation but

find on the basis of the evidence that he should be capable of

some form of alternative work such as packer."

7. Against that decision claimant sought leave to appeal to the Commissioner and upon receipt of the Notice the Adjudication Officer made the following observations:-

"The Tribunal have erred in law in stating that 'the claimant has

not proved on the balance of probabilities that he is incapable of

work from 27 February 1993'. The Tribunal were looking at a review

decision of an AO, the onus of proof on the incapacity question

therefore rests with the AO and not the claimant. In the latter

part of paragraph 6 of Commissioners decision R(S)3/90 the

Commissioner stated:

"The effect of regulation 17(1) was important in that if,

as here, the claim had to be treated as one for an indefinite

period, it could only be terminated on review pursuant to

paragraph (4), and a review could only take place if the

adjudication officer had established that the claimant was no

longer incapacitated. In other words, the onus of proof fell

on the adjudication officer. Whereas in cases where a new

award had to be made the burden was on the claimant to show

that he was incapable of all forms of work, on a review it

was for the adjudication officer to demonstrate that the

claimant had ceased to qualify for benefit."

In his application Mr B... states that the tribunal made a

decision supported by insufficient evidence. However in addition

to the evidence given at the hearing on 14 March 1994 the Tribunal

had before them reports from 2 different medical officers of the

Department dated 7 December 1992 and 22 February 1993 and a

consultant surgeon's report dated 11 January 1994.

I submit that although the tribunal erred as stated above, their

error was only technical and the end result was a decision they

were entitled to reach based on the evidence before them."

8. I arranged an oral hearing at which the claimant's representative argued that claimant did not see the medical report nor did he have an opportunity of commenting upon the suggestion that he would be capable of doing work as a packer. The Adjudication Officer drew attention to the fact that the date on which the benefit was withdrawn was wrong because until the Adjudication Officer made a decision the claimant was still entitled to the benefit and also drew attention to the fact that the burden of proof rested upon the Adjudication Officer to show why he considered he was entitled to review the decision.
9. I have considered all that has been said and I am surprised that the Adjudication Officer's submission dismisses the burden of proof question as really a technical one. I am quite satisfied that it is not a technical matter. The burden of proof is very relevant and very important and the Tribunal should have considered firstly whether or not the Adjudication Officer had any right to review the award and the submission to the Tribunal is certainly very deficient in that regard.
10. I am satisfied that the Tribunal looked at the matter from the wrong stand-point, that it considered that the burden of proof rested upon the claimant, whereas in fact the burden of proof rested upon the Adjudication Officer. I am satisfied therefore that that is a sufficient error of law to nullify the decision.
11. At the hearing I granted leave to appeal and with the consent of both parties treated the application as the appeal. For the reasons set out above I allow the appeal and refer the matter back to be reheard by a differently constituted Social Security Appeal Tribunal which shall consider whether or not there were grounds upon which the Adjudication Officer was entitled to review the previous decision.

(Signed): C C G McNally

COMMISSIONER

27 April 1995